United States District Court, M.D. Georgia, Macon Division
ASHLEY ROYAL, SENIOR JUDGE.
pending before the Court is pro se Plaintiff Waseem
Daker's motion for leave to appeal in forma
pauperis (ECF No. 22) from the Court's June 8, 2017
Order dismissing the majority of Plaintiff's claims as
frivolous and/or malicious or for failing to state a claim
upon which relief may be granted and transferring
Plaintiff's remaining claims to the Southern District of
Georgia. Plaintiff has also filed a motion for
reconsideration of that order (ECF No. 20) pursuant to
Federal Rule of Civil Procedure 59(e). For the following
reasons, the Court DENIES Plaintiff's
motion to appeal in forma pauperis and
DENIES in part and GRANTS in PART
Plaintiff's motion for reconsideration.
Motion for Reconsideration
Court recognizes three circumstances that warrant
reconsideration of a prior order under Rule 59(e): “(1)
an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct
clear error or manifest injustice.” Daker v.
Humphrey, Civil Action No. 5:12-CV-461 (CAR), 2013 WL
1296501, at *2 n.1 (M.D. Ga. Mar. 27, 2013) (quoting Fla.
College of Osteopathic Med., Inc. v. Dean Witter, 12
F.Supp.2d 1306, 1308 (M.D. Fla. 1998)). Plaintiff alleges
that there is a need for the Court to correct clear errors or
manifest injustice in this case. ECF No. 20 at 1.
Specifically, Plaintiff contends that the actions complained
about in the Complaint in the above-captioned action occurred
in November of 2016, several months after he filed the
amended complaint in Daker v. Owens, No.
5:12-cv-459-CAR-MSH (M.D. Ga. Nov. 20, 2012)
(“Daker I”). Id. Thus,
Plaintiff argues, the claims in this Complaint cannot be
duplicative of the claims in Daker I. Id.
Plaintiff also alleges that the Court erred in dismissing
Plaintiff's “other claims, ” but provides no
basis for this error other than his belief that “such
claims plainly state a valid claim upon which relief may be
Plaintiff has been previously advised, “‘motions
for reconsideration are disfavored'” and
“‘relief under Rule 59(e) is an extraordinary
remedy to be employed sparingly.'” Mercer v.
Perdue Farms, Inc., No. 5:10-cv-324 (CAR), 2012 WL
1414321, at *1 (M.D. Ga. Apr. 20, 2012) (quoting Krstic
v. Princess Cruise Lines, Ltd., 706 F.Supp.2d 1271, 1282
(S.D. Fla. 2010)). The Court clearly considered
Plaintiff's allegations that various Reidsville
Defendants violated Plaintiff's constitutional rights in
November of 2016 and transferred those claims to the Southern
District of Georgia. See, e.g., ECF No. 17 at 9, 11.
It was only Plaintiff's remaining claims that were found
to be duplicative and were consequently dismissed as
frivolous and/or malicious pursuant to 28 U.S.C. § 1915.
The Court thus finds that Plaintiff has failed to demonstrate
that the Court clearly erred in rendering its decision or
that Plaintiff has suffered a manifest injustice because the
Court failed to consider actions that occurred in November
2016. The Court observes, however, that its order of
dismissal stated that Plaintiff would have the opportunity to
fully litigate his duplicative claims in Daker I.
See ECF No. 17 at 9. The Court thus intended that
Plaintiff's duplicative claims be dismissed without
prejudice to his prosecution of those duplicative claims in
Daker I. In an abundance of caution, the Court
accordingly MODIFIES its order and judgment
in this case so that the dismissal of the duplicative claims
is WITHOUT PREJUDICE to Plaintiff's
prosecution of his claims in Daker I. See Lewis v.
Sec'y of Pub. Safety & Corr., 508 F. App'x
341, 344 (5th Cir. 2013) (per curiam). Plaintiff's motion
(ECF No. 20) is therefore DENIED in part and GRANTED
in part. The Clerk of Court is
DIRECTED to AMEND the
Judgment in accordance with this Order.
Motion for Leave to Appeal in forma
to 28 U.S.C. § 1915(a)(1), a court may authorize an
appeal of a civil action or proceeding without prepayment of
fees or security therefor if the putative appellant has filed
“an affidavit that includes a statement of all
assets” and “state[s] the nature of the . . .
appeal and [the] affiant's belief that the person is
entitled to redress.” If the trial court certifies in
writing that the appeal is not taken in good faith, however,
such appeal may not be taken in forma pauperis. 28
U.S.C. § 1915(a)(3). “‘[G]ood faith' . . .
must be judged by an objective standard.” Coppedge
v. United States, 369 U.S. 438, 445 (1962). The
plaintiff demonstrates good faith when he seeks review of a
non-frivolous issue. Id.; see also Morris v.
Ross, 663 F.2d 1032, 1033 (11th Cir. 1981). An issue
“is frivolous if it is ‘without arguable merit
either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
“Arguable means being capable of being convincingly
argued.” Sun v. Forrester, 939 F.2d 924, 925
(11th Cir. 1991) (per curiam) (quotation marks and citations
omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th
Cir. 1993) (per curiam) (“[A] case is frivolous . . .
when it appears the plaintiff ‘has little or no chance
of success.'”) (citations omitted). “In
deciding whether an [in forma pauperis] appeal is frivolous,
a district court determines whether there is ‘a factual
and legal basis, of constitutional dimension, for the
asserted wrong, however inartfully pleaded.'”
Sun, 939 F.2d at 925 (citations omitted).
Plaintiff has not submitted a statement of the issues he
intends to appeal in his motion to proceed in forma
pauperis, as is required under Fed. R. App. P.
24(a)(1)(C), this Court's independent review of the
issues addressed in the Court's June 8, 2017 Order
demonstrates that Plaintiff's appeal is frivolous.
See Hyche v. Christensen, 170 F.3d 769, 771 (7th
Cir. 1999), overruled on other grounds by Lee v.
Clinton, 209 F.3d 1025 (7th Cir. 2000) (explaining that
the arguments to be advanced on appeal are often obvious and
decisions regarding good faith can be made by looking at the
“reasoning in the ruling sought to be appealed”
instead of requiring a statement from the plaintiff). The
appeal, therefore, is not brought in good faith. Plaintiff
has raised no issues with arguable merit.
Plaintiff's application to appeal in forma
pauperis (ECF No. 22) is DENIED. If
Plaintiff wishes to proceed with his appeal, he must pay the
entire $505 appellate filing fee. Because Plaintiff has
stated that he cannot pay the fee immediately, he must pay
using the partial payment plan described under 28 U.S.C.
§ 1915(b). Pursuant to section 1915(b), the prison
account custodian where Plaintiff is confined shall cause to
be remitted to the Clerk of this Court monthly payments of
20% of the preceding month's income credited to
Plaintiff's account (to the extent the account balance
exceeds $10) until the $505 appellate filing fee has been
paid in full. Checks should be made payable to “Clerk,
U.S. District Court.” The Clerk of Court is
DIRECTED to send a copy of this Order to the
custodian of the prison in which Plaintiff is incarcerated.
Federal Rule of Appellate Procedure 24
similarly requires a party seeking leave to appeal in
forma pauperis to file a motion and affidavit that
establishes the party's inability to pay fees and costs,
the party's belief that he is entitled to redress, and a
statement of the issues which the party intends to present on
appeal. Fed. R. App. P. 24(a).
 The Court notes that the “three
strikes” provision of the Prison Litigation Reform Act
(“PLRA”) also prohibits a prisoner from
“appeal[ing] a judgment in a civil action ...